How Governor Schwarzenegger, and Those Who Seek Clemency for Stanley "Tookie" Williams Both Get Our Legal and Constitutional Tradition Wrong

On December 13, the execution of Stanley "Tookie" Williams is set to occur in California. Williams is the co-founder of the Los Angeles Crips gang - but while in prison, he's become a renowned children's book author, and a crusader against gang violence.

Williams hasn't admitted guilt, or expressed remorse for his crimes. Still, his rehabilitation, many have argued, merits clemency from Governor Arnold Schwarzenegger. Even the U.S. Circuit Court of Appeals for the Ninth Circuit, which denied Williams's appeal, remarked on his "laudable efforts opposing gang violence from his prison cell," and suggested that his "good works and accomplishments since incarceration may make him a worthy candidate for the exercise of gubernatorial discretion...."

Williams's supporters are right that Williams should be spared execution, for capital punishment is wrong, and his life is worth saving.

But the case they are making on his behalf - which focuses on concepts of fairness and justice -- misunderstands what clemency is, and why the lives of the condemned should be spared. One cannot earn or deserve clemency - as Williams's supporters say he has. Rather, as defined by our legal and constitutional tradition, it is an exercise of mercy and grace.

Meanwhile, Governors across the country have recently demonstrated another, and far more pernicious, misconception about clemency - as I will explain. This misconception, if not corrected, may cause Governor Schwarzenegger to wrongly deny clemency in Williams's case.

The Governors' Misconception: Clemency Is Essentially For Those May Be Innocent

In California and across the nation, clemency has virtually disappeared from the world of capital punishment, as the grounds on which it has been granted have dramatically narrowed. Despite appeals from many -- from the Pope and Mother Teresa, to former prosecutors and even judges and jurors in death cases -- governors now tend to reserve their clemency power for "unusual" cases in which there are serious doubts about guilt, or in which someone clearly has been unfairly convicted.

Consider then-governor George w. Bush. Describing his approach to capital clemency, Bush wrote, "In every case I would ask: Is there any doubt about this individual's guilt or innocence? And, have the courts had ample opportunity to review all the legal issues in this case?"

Apparently applying this standard, Bush declined to spare -- seven years ago -- Karla Faye Tucker in Texas. Tucker had participated in a gruesome murder, but had admitted guilt, expressed remorse, and embraced religion. Politicians, educators, religious leaders, and even such stalwart conservatives as Newt Gingrich and Pat Robertson implored Bush to grant her clemency. But Governor Bush rejected their pleas, and explained, "Like many touched by this case, I have sought guidance through prayer. I have concluded judgments about the heart and soul of an individual on death row are best left to a higher authority."

Governor Schwarzenegger - who will decide Stanley "Tookie" Williams's fate -- has embraced a standard only slightly broader. He takes the view that - as he explained earlier this year, when he allowed Donald Beardslee's execution to proceed -- "Clemency is not designed to undo the considered judgment of the people in favor of the death penalty, but to prevent the miscarriage of justice."

This notion of clemency has sadly become the national norm, with governors everywhere refusing to consider mental illness or incompetence, childhood physical or sexual abuse, remorse, rehabilitation, racial discrimination in jury selection, or the competence of the legal defense.

Nor have governors been willing to take into account glaring disparities in sentences between co-defendants, or among defendants convicted of similar crimes.

But it doesn't have to be that way - for this view is simply wrong. It deeply misunderstands clemency, as our nation's history has defined it.

Not Justice, But Mercy: A Look at the Jurisprudence of Clemency

Fundamentally, clemency is about mercy, not justice. Writing in 1833, in the first case about clemency to reach the Supreme Court, John Marshall described it as "an act of grace, proceeding from the power entrusted with the execution of the laws."

Similarly, writing a little more than twenty years later, in Ex Parte Wells, Justice Wayne explained the difference between the meanings of a pardon in "common parlance" and in the law. In common parlance, he noted, a pardon may loosely be deemed as meaning "forgiveness, release, remission." But in the law, Wayne wrote, "it has different meanings, which were as well understood when the constitution was made as any other legal word in the constitution now is," and noted that without clemency, our system "would be most imperfect and deficient in its political morality, and in that attribute of Deity whose judgments are always tempered with mercy."

In sum, Marshall and Wayne equated clemency with grace and mercy - not justice or fairness. An alternative view was offered in the early twentieth century by Supreme Court Justice Oliver Wendell Holmes -- who claimed that a pardon represents not an act of mercy and grace, but rather a cold cost-benefit analysis: "the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed."

Still, most courts have decisively rejected Holmes's view. Indeed, even Chief Justice Rehnquist -- no death-penalty liberal! -- described clemency in one decision as the sovereign's "power to extend mercy, whenever he thinks it is deserved."

And in another, Rehnquist made clear that "the heart of executive clemency… is a grant of clemency as a matter of grace, thus allowing the executive to consider a wide range of factors not comprehensible by earlier judicial proceedings and sentencing determinations."

Clemency, Grace, and Arnold Schwarzenegger

In sum, Governor Schwarzenegger's idea of the clemency standard - as meant only to correct miscarriages of justice - is simply wrong; it profoundly misunderstands our legal and constitutional traditions.

Schwarzenegger should not - and cannot - hide behind this mischaracterization of his clemency power. The decision in the Williams case really is a test of the man, and what kind of governor he wishes to be.

It is about whether he will focus on charity or compassion, or worry about paying the steep political price - at a time when his own popularity is at a new low - that granting clemency to Stanley Williams will necessarily entail. The courageous decision is to spare Williams, not condemn him to death. The question is whether Schwarzenegger has that courage - not whether Williams has "earned" or "deserved" clemency.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College and the author of Mercy on Trial: What It Means to Stop an Execution (Princeton University Press, 2005).